Whether non consensual sex with wife of any age be criminalised as an offence of marital rape?
In this 21st century, it is very hard to digest one thing that a marriage without free consent is not valid whereas a sexual intercourse with a wife without her free consent is valid. It cannot be denied by anyone that we live in a patriarchal society where each man enjoys some special privileges and they have dominating position in our society. From the time of yore, women are considered as a chattel, and they always deem as an object which can satisfy the sexual desire of a man.
Due to this mentality, women are facing ‘n’ number of problems and their rights have been violated uninterruptedly. One of the main problems that has been faced by every woman is of non- consensual sexual intercourse.
According to the most celebrated article of Indian Constitution i.e., article 21, every person has fundamental right to live a dignified life. In this article, the term ‘person’ has been used which includes both men and women.
According to the various judgments of the Apex court, this right includes right to marry as well as right to have sexual intercourse. But this article includes consensual sexual intercourse, and it does not include non- consensual sexual intercourse.
But due to the patriarchal nature of the society, every man considers this right as an absolute right and commits the sexual intercourse with his wife without taking her permission and against her will. In such a manner, he violates the very basic fundamental/natural right of a woman.
Just to protect this right of every woman and to protect them from anguish, various Non- Governmental Organisations and various venerable identities/dignitaries are demanding from the government to criminalise the marital rape and tag it as an offence. Because of the colossal demand, a private bill was introduced in the Parliament regarding the criminalisation of marital rape, but this step was disparaged and revoked on the context that if the parliament make a law upon this subject, then it might be used by the women as a sword but not as a shield.
This step of the Parliament was criticised by the proponents and just to protect the women, our highly esteemed judiciary took the initiative and pronounced an acclaimed judgment in the case of Independent Thought vs. Union of Indian and Anr. (SC 2017) and held that if any husband commits a sexual intercourse with his wife who is below the age of eighteen years either with the consent of the wife or without the consent of the wife, that husband will be held liable for having committed the offence of rape given under section 375 of the Indian Penal Code, 1860.
In this case, the Hon’ble Supreme Court took progressive approach and increased the age of fifteen years to eighteen years.
Besides this judgment, in the leading case of Justice K.S. Puttaswamy vs. Union of India and other (SC 2017), the Hon’ble Supreme Court recognized the right of privacy as a fundamental right and held that it is intrinsic part of the article 21 of the Indian Constitution. According to this judgment, every person has a fundamental right of privacy, and no third person can intrude into the privacy of any other person.
According to the Indian Justice System, matrimonial intercourse is a private act and if a couple wants to indulge into a sexual activity, then in such a case, consent of both the partners is required. But if any of the partner engages into the sexual intercourse with another partner without his/her consent, then that former partner is intruding into the privacy of another partner and violating the right of privacy of latter partner.
Moreover, in the leading cases of Navtej Singh Johar and ors. vs Union of India (SC 2018) and Joseph Shine vs Union of India (SC 2018), the Hon’ble Supreme Court tried to bring the equality among men and women and allowed them to have sexual intercourse according to their volition.
So, according to all these judgments, it is cleared that all the women do have right to privacy and if any person even their husband tries to violate this right of any woman, then in such a case, he should be punished. That is why, our judiciary is directing the legislature to pay heed upon this subject and criminalise the marital rape.
It is always observed that long pressed emotion results in the rebellion. We being the largest democracy it shall be a shame kind of thing if we ourselves do not take the cognizance of the need of the hour and criminalises the marital rape.